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02/19/88 the People of the State of v. Denise M. Miller

February 19, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DENISE M. MILLER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

519 N.E.2d 717, 166 Ill. App. 3d 155, 116 Ill. Dec. 649 1988.IL.241

Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. BARRY, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The defendant, Denise Miller, was indicted on two counts of violations of section 11-501(e) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(e)). The indictments charged that the defendant, while driving under the influence of alcohol (count I) or while her blood-alcohol level was 0.10 or more (count II), was involved in a motor vehicle accident which resulted in great bodily harm or permanent disability or disfigurement and that such driving under the influence of alcohol or while her blood-alcohol content was 0.10 or more was a proximate cause of said motor vehicle accident. After a jury trial, defendant was found guilty on both counts, as well as the lesser included offense of driving while her blood-alcohol level was 0.10 or more.

On June 29, 1986, the defendant was involved in an automobile accident while driving the wrong way in the left-hand lane of Route 24 in Peoria County. The driver of the other automobile was seriously injured in the accident, suffering multiple fractures of his left leg and his face, as well as other injuries which caused him to be hospitalized for treatment for approximately 2 1/2 weeks following the accident.

A Peoria County deputy sheriff investigated the accident in response to a call, and in looking through defendant's car for identification of the driver, noticed that there was vomit on the dashboard and a strong odor of alcohol in the car. Following the accident, the defendant was transported to the hospital for treatment. At the hospital, approximately four hours after the accident, the deputy sheriff requested a blood sample from the defendant for the purposes of obtaining a blood-alcohol level, to which defendant consented. Prior to and at the time of the drawing of blood samples, defendant had a tube in her nose and intravenous tubes in her arms, and apparently was being given medication.

The emergency room nurse testified that she had no recall of taking the defendant's blood on the date of the accident, but did identify the vials of defendant's blood by testifying to her writing on the vial labels. The State sought to establish through habit testimony what the nurse's usual procedure was in drawing samples for blood-alcohol content. The defendant objected on the basis that testimony about the nurse's usual procedures was not relevant to show what she actually did on the night in question. The court overruled the objection, and allowed the nurse to answer and describe her procedure for drawing blood samples for blood-alcohol content. The witness stated that after drawing the blood, she fills out the sample tube labels and delivers the samples to the officer who is present.

When another prosecution witness testified as to the blood test analysis, the defense claimed there was an inadequate foundation for admission of these results since the prosecution failed to show the emergency room nurse implemented the proper procedures for drawing blood and the medication given the defendant could have affected the accuracy of the blood test. The trial court overruled the objection and the witness testified the defendant's blood-alcohol level was 0.125.

An expert witness, Dr. Daniel Brown, a toxicologist at the Bureau of Forensic Sciences with 20 years' experience in the study of alcohol and physiology, testified to the effects of alcohol with reference to a person's mental and motor abilities when impaired. The defendant did not present any evidence, and the jury subsequently returned a verdict of guilty on both counts of indictment, as well as the lesser included offense of driving while her blood-alcohol concentration was 0.10 or more. Defendant was sentenced to a term of 30 months' probation, and as a condition of such probation, defendant was ordered to serve a three-month jail term in the Peoria County Jail and to pay restitution in the amount of $31,773.25.

The defendant appeals her conviction asserting that the State failed to prove the accuracy of the blood-alcohol level and the court allowed the admission of incompetent evidence in its case in chief when the emergency room nurse testified as to her routine procedures for drawing blood. She further alleges that the restitution penalty was improperly imposed.

Initially, we address the defendant's contention that the State failed to meet its burden of showing that the medication or intravenous fluids did not interfere with the accuracy of the blood test. We believe this issue is one of first impression in this State.

It is not the defendant's burden to show she was not under the influence of alcohol. (People v. Thomas (1975), 34 Ill. App. 3d 578, 340 N.E.2d 174.) In order to admit a breath test, one of the foundational requirements is that the defendant be observed for 20 minutes prior to being administered the test. (People v. Crawford (1974), 23 Ill. App. 3d 398, 318 N.E.2d 743.) During that period, the defendant must not eat, smoke, regurgitate or drink, so as not to affect the accuracy of the breath test. Similarly, the State should have to show an analogous foundation to prove the accuracy of a blood test. People v. Winfield (1975), 30 Ill. App. 3d 668, 332 N.E.2d 634, held the prosecution is not required to show the ...


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